## Facts

- A tenant rented a Washington, D.C. dwelling on a month-to-month lease through the owner’s agent; Agnes Littlejohn (a household member) occupied an upstairs bedroom.
- After a snowstorm, dampness appeared on a bedroom wall; the condition was reported, and the landlord’s representative inspected, found no roof leak, and agreed to address the cause.
- After an all-night rain several days later, the roof leaked and left the bedroom floor wet.
- Littlejohn discovered the wet floor, mopped it twice, left briefly, then returned and slipped on the wet floor, sustaining injuries.
- Littlejohn sued the owner and agent for negligence, alleging they knew or should have known of the leaking roof and dangerous condition in time to repair it.
- Littlejohn later died from unrelated causes; the estate’s administratrix was substituted as plaintiff.
- At pretrial, plaintiff’s counsel framed the claim as negligence based on a lease-based duty to repair, not on housing-code duties.
- At trial, plaintiff moved to amend the pretrial order to assert negligence based on violations of local housing regulations requiring leak-proof roofs and prevention of dampness.

## Issues

1. Whether the trial court abused its discretion under Federal Rule of Civil Procedure 16 by denying a midtrial amendment to the pretrial order that would change the plaintiff’s legal theory from a lease-based duty to repair to a housing-regulation theory.
2. Whether, on the theory preserved in the pretrial order, the evidence was sufficient to submit negligence to the jury or instead supported a directed verdict for defendants.

## Decision

- The court of appeals affirmed.
- The trial court did not abuse its “justifiably large discretion” under Rule 16 by refusing to allow a midtrial shift in legal theory through amendment of the pretrial order.
- On the lease-based duty-to-repair theory, the evidence did not show defendants had actual or constructive notice of the roof leak in time to repair it before the fall.
- The directed verdict was also supported because Littlejohn knowingly walked on a wet floor she had already discovered and mopped, constituting contributory negligence as a matter of law under then-applicable District of Columbia doctrine.

## Legal Principles

- A pretrial order entered under Federal Rule of Civil Procedure 16 controls the subsequent course of the action; modification is committed to the trial court’s discretion.
- A trial court may refuse to permit a party to change legal theories during trial by amending the pretrial order; reversal requires a showing of abuse of discretion, commonly tied to “manifest injustice.”
- Where a plaintiff proceeds on a lease-based duty-to-repair theory, liability requires proof of a duty to repair and that the defendant had actual or constructive notice of the defect with sufficient time to remedy it.
- Under contributory negligence doctrine, a plaintiff’s knowing exposure to an obvious, hazardous condition can bar recovery as a matter of law and support a directed verdict.

## Conclusion

The court upheld enforcement of the pretrial order, holding that Rule 16 allowed the trial judge to bar a midtrial change from a contract-based repair theory to a housing-regulation theory, and it affirmed a directed verdict because the record did not establish timely notice of the leak and because the injured occupant’s conduct constituted contributory negligence.


McKey v. Fairbairn, 345 F.2d 739 (D.C. Cir. 1965)